SECOND COURT OF APPEALS, FORT WORTH, TEXAS

Description: Around midnight on February 8, 2012, Officer Brent Brown with The
Colony police department was finishing assisting another officer with a stop on
Windhaven in the Austin Ranch apartment complex. The Austin Ranch area at
that time of night has a lot of foot traffic, and the police have trouble with
intoxicated persons and drivers. As he was facing eastbound, Officer Brown saw
a dark-colored car headed westbound on the opposite side of the street bounce
off a curb. Officer Brown made a U-turn on Windhaven, at which point he could
not see the car. There were no other cars on Windhaven at the time.
At the next intersection, Officer Brown saw two pedestrians at the
crosswalk who pointed westbound and said “the vehicle is that way.” They also
told him the car was a dark Infiniti and it was “driving crazy.” Officer Brown could
see taillights about two tenths of a mile ahead where the pedestrians had
pointed, so he activated his overhead lights and tried to catch up. He saw the
car turn left about 900 to 1200 feet past the intersection he had left and lost sight
of it.
After Officer Brown turned left at the same street where he saw the car had
turned, he “pretty quickly” saw a car with its brake lights on parked behind an
apartment that faced Windhaven. He pulled in behind the car, a black Infiniti,
and sat behind it in his car for ten to fifteen seconds. Officer Brown then got out
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of his car, and the driver of the vehicle turned left into a garage. While this was
happening, Officer Brown was shining his flashlight through the window into the
driver’s face, but the driver did nothing to indicate that she saw him. After the
driver pulled into the garage, she attempted to shut the door, but Officer Brown
stepped inside, which caused the door to stop closing. Officer Brown identified
the driver as Flemmons and arrested her for driving while intoxicated (DWI).
A grand jury indicted Flemmons for felony DWI. See Tex. Penal Code
Ann. §§ 49.04, 49.09(b)(1) (West Supp. 2017). The 362nd District Court
transferred the case to the 158th District Court, which in turn transferred the case
to Denton County Criminal Court Number Five. See Tex. Gov’t Code Ann. §
25.0634 (West 2004). At that time, the Honorable Richard Podgorski was the
presiding judge of County Criminal Court Number Five. Flemmons filed a motion
to suppress in the county court, alleging that Officer Brown did not have
reasonable suspicion to stop her car and that his warrantless entry of her garage
was not justified. After a hearing, Judge Podgorski denied the motion to
suppress and signed findings of fact and conclusions of law.
The case was not tried before Judge Podgorski left the county court bench.
Flemmons filed a motion to disqualify his successor, the Honorable Coby
Waddill, because Judge Waddill had consulted with Flemmons about the case
when in private practice. Judge Waddill granted the motion, and the case was
transferred back to the 158th District Court. After the transfer, Flemmons filed a
motion to reconsider her motion to suppress. At a hearing on the motion, the
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presiding judge of the 158th District Court––the Honorable Steve Burgess––
noted that the State and Flemmons had agreed “that the best evidence . . .
would be the record from the prior hearing [before Judge Podgorski], along with
the findings of fact and conclusions of law that are file-marked May 16th, 2013.”
At the conclusion of the hearing, Judge Burgess suppressed the evidence from
the traffic stop, and the State filed a timely notice of appeal. Judge Burgess also
signed new findings of fact and conclusions of law.
Judge Burgess Did Not Abuse His Discretion by Making His Own Findings of Fact

In its first issue, the State contends that Judge Burgess abused his
discretion by making his own findings of fact “based on the cold record” and, in
doing so, disregarding Judge Podgorski’s factual determinations. According to
the State, Judge Burgess was sitting as a reviewing court and therefore was
bound to defer to Judge Podgorski’s findings of fact under the prescribed
appellate standard of review. See Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007) (“In reviewing a trial court’s ruling on a motion to suppress
evidence and its determination of the reasonableness of either a temporary
investigative detention or an arrest, appellate courts . . . must give ‘almost total
deference to a trial court’s determination of the historical facts that the record
supports especially when the trial court’s fact findings are based on an evaluation
of credibility and demeanor.’”).
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But nothing in the record indicates that Judge Burgess was engaging in an
appellate review of the prior motion to suppress hearing. Instead, he stated on
the record that the State and Flemmons had agreed that the reporter’s record of
the prior hearing and Judge Podgorski’s findings of fact and conclusions of law
were the “best evidence” to be presented in the reconsideration hearing. Neither
party objected to his understanding of the agreement, nor did the State urge that
Judge Burgess was limited to the appellate standard of review. The State cannot
agree to the trial court’s consideration of the prior record as “evidence” and then
complain on appeal about the trial court’s doing so. See Druery v. State, 225
S.W.3d 491, 506 (Tex. Crim. App.), cert. denied, 522 U.S. 1028 (2007); Degadillo
v. State, 262 S.W.3d 371, 377 (Tex. App.––Fort Worth 2008, pet. ref’d); Mann v.
State, 850 S.W.2d 740, 742 (Tex. App.––Houston [14th Dist.] 1993, pet. ref’d).
The State contends that Judge Burgess made credibility and factual
determinations in conflict with Judge Podgorski’s credibility and factual findings,
running afoul of the holding in Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim.
App. 2000). Garcia is inapposite because it did not involve a pretrial
reconsideration of a suppression issue by a different judge; instead, it involved
whether a court of appeals abating an appeal for findings of fact on the
voluntariness of a confession, as required by article 38.22 of the code of criminal
procedure, could order a new trial judge––who had not heard the evidence and
had not made the suppression ruling being appealed––to make the required
findings of fact and conclusions of law from the “cold record” of the prior judge’s
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hearing. Id. at 534–35. The court of criminal appeals determined that the
language of article 38.22 suggests that the legislature did not intend for a trial
court to hold a paper hearing under that statute and thus held that Garcia was
entitled to a new suppression hearing on voluntariness before the then-presiding
trial judge. Id. at 536; see also Velez v. State, No. AP-76,051, 2012 WL
2130890, at *12–14 (Tex. Crim. App. June 13, 2012) (not designated for
publication) (holding that exception to Garcia’s holding exists when trial judge
who originally held voluntariness hearing was unavailable and new presiding
judge refrained from making explicit credibility determination and limited review to
record and prior trial judge’s ruling), cert. denied, 569 U.S. 968 (2013); Jimenez
v. State, Nos. 01-15-00501-CR, 01-15-00506-CR, 2016 WL 5799138, at *6 (Tex.
App.––Houston [1st Dist.] Oct. 4, 2016, no pet.) (mem. op., not designated for
publication) (citing Garcia as prescribing the proper procedure of abating appeal
so that the same trial judge who heard article 38.22 suppression issue could
make findings of fact and conclusions of law). Thus, Judge Burgess’s new
findings of fact and conclusions of law were not prohibited by Garcia.
Additionally, despite the State’s assertion otherwise, Judge Burgess’s
credibility determination and subsequent factual findings do not contradict Judge
Podgorski’s. Judge Burgess stated on the record at the new suppression
hearing, “I’m accepting what’s in the transcript.” And while it is true that each set
of findings of fact and conclusions of law––the first prepared by the State and the
second prepared by Flemmons––includes and omits different facts testified to by
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Officer Brown, all of those facts are supported by his testimony.2 See Tucker v.
State, 369 S.W.3d 179, 184 (Tex. Crim. App. 2012) (“In reviewing a trial court’s
ruling on a motion to suppress, appellate courts must afford great deference to
the trial court’s findings of historical facts as long as the record supports those
findings.”). And the facts that are relevant to the ultimate legal conclusions are
the same in both sets of findings of fact and conclusions of law:
• Officer Brown saw a dark-colored car that was traveling westbound on Windhaven hit the curb;

• Officer Brown made a U-turn on Windhaven and began driving westbound. At that point, he did not see the car anymore;

• at the intersection of Windhaven and Saintsbury, Officer Brown saw two unidentified persons in the crosswalk, who pointed and said, “The vehicle is that way.” He asked what the car was doing, and they said it was “driving crazy.” They also said “that’s the car” and “there it goes, a dark Infinit[i]”;

• Officer Brown activated his overhead lights at that time and saw taillights ahead of him on Windhaven;

• Officer Brown lost sight of the taillights when the car ahead of him turned;

2For instance, the State takes issue with Judge Burgess’s finding that Officer Brown did not know that Flemmons’s car was the same as the one he saw hit the curb even though Judge Podgorski had determined that it was the same vehicle “because Officer Brown was able to corroborate the vehicle description and direction of travel he was given by the pedestrians.” But Officer Brown testified that he did not know that Flemmons’s car was the same one he saw hit the curb; therefore, Judge Podgorski’s finding simply went further and stated that it would have been reasonable for Officer Brown to infer that it was the same car. Moreover, Judge Burgess also concluded that even if it was the same car, Officer Brown nevertheless did not have reasonable suspicion to stop Flemmons.
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• Officer Brown turned left on Arbor Hills and saw a dark Infiniti parked by a garage, and he pulled in behind it;

• Officer Brown sat in his car behind the dark Infiniti for ten to fifteen seconds;

• when Officer Brown got out of his car, the driver of the Infiniti turned left into a garage, and he flashed his light into the driver’s side window;

• the driver attempted to close the garage, but Officer Brown stepped in, preventing the door from closing;

• Officer Brown did not have a warrant to enter the garage; and

• Officer Brown made contact with Flemmons inside the garage.

A careful examination of both documents shows that where Judge Burgess
substantively differed from Judge Podgorski was in his legal conclusions based
on the operative facts.
Although it is true that a trial judge in a live hearing is “[u]niquely situated to
observe the demeanor of witnesses first-hand” and is therefore “in the best
position to assess the[ir] credibility,” see Ex parte Reed, 271 S.W.3d 698, 727
(Tex. Crim. App. 2008), in this instance, the State agreed with Flemmons to
present the evidence in this manner. We therefore overrule the State’s first
issue.
Officer Brown Did Not Have Reasonable Suspicion to Detain Flemmons
In its second issue, the State argues that Judge Burgess erred by
concluding that Officer Brown did not have reasonable suspicion to stop and
detain Flemmons to investigate an offense.
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Standard of Review and Applicable Law
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador, 221 S.W.3d at 673; Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a
trial court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on an evaluation of credibility and demeanor, but we review
de novo application-of-law-to-fact questions that do not turn on credibility and
demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim.
App. 2002). We must uphold the trial court’s ruling if it is supported by the record
and correct under any theory of law applicable to the case even if the trial court
gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740
(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim.
App. 2003), cert. denied, 541 U.S. 974 (2004).
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An
officer conducts a lawful temporary detention when he or she has reasonable
suspicion to believe that an individual is violating the law. Crain v. State, 315
S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488, 492 (Tex.
Crim. App. 2005). Reasonable suspicion exists when, based on the totality of the
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circumstances, the officer has specific, articulable facts that when combined with
rational inferences from those facts, would lead him to reasonably conclude that
a particular person is, has been, or soon will be engaged in criminal activity.
Ford, 158 S.W.3d at 492. This is an objective standard that disregards any
subjective intent of the officer making the stop, looking solely to whether an
objective basis for the stop exists, and requiring only some minimal level of
justification. Brodnex v. State, 485 S.W.3d 432, 437 (Tex. Crim. App. 2016);
Foster v. State, 326 S.W.3d 609, 614 (Tex. Crim. App. 2010).
Analysis
The question, then, is whether an officer has reasonable suspicion to
detain a driver based on the following: (1) around midnight in a high-DWI area
with no other cars on the road, he sees a dark car driving on the opposite side of
the street bounce off a curb; (2) after turning around and following the direction
the car went, he encounters on the same street unidentified pedestrians who
point toward a car whose taillights he can see, tell him the car is a dark Infiniti,
and opine that it was “driving crazy”; and (3) after turning on the street onto which
he saw the car turn, he quickly spots a dark Infiniti parked behind an apartment
with its lights on. See State v. Gray, 158 S.W.3d 465, 469 (Tex. Crim. App.
2005) (explaining that trial court’s conclusion that officer lacked probable cause
to arrest despite finding officer’s testimony credible was reviewable de novo as
an application of law to facts).
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Reasonable suspicion is dependent on both the content of information
known to the police and its degree of reliability. Alabama v. White, 496 U.S. 325,
330, 110 S. Ct. 2412, 2416 (1990). Judge Podgorski’s and Judge Burgess’s
findings show that they believed Officer Brown’s observations. Judge Podgorski
concluded that the pedestrians’ information was reliable while Judge Burgess
concluded that it was not reliable. But we need not decide whether the
pedestrians’ information was reliable. See Taflinger v. State, 414 S.W.3d 881,
885 (Tex. App.––Houston [1st Dist.] 2013, no pet.) (op. on reh’g) (“The most
reliable form of a citizen tip is information given to the officer by a “face-to-face
informant who has no other contact with the police beyond witnessing a criminal
act.”) (quoting State v. Griffey, 241 S.W.3d 700, 704–05 (Tex. App.––Austin
2007, pet. ref’d)). Even a reliable tip will not justify an investigative stop if it does
not create reasonable suspicion that “criminal activity may be afoot.” Navarette
v. California, 134 S. Ct. 1683, 1690 (2014) (quoting Terry, 392 U.S. at 30, 88 S.
Ct. at 1868); Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 1379 (2000)
(noting that anonymous tip must be reliable as to both tendency to identify a
determinate person and in its assertion of illegality); U.S. v. Wheat, 278 F.3d 722,
732 n.8 (8th Cir. 2001) (“In all cases, however, the more extensive the
description of the alleged offense, the greater the likelihood that the tip will give
rise to reasonable suspicion.”), cert. denied, 537 U.S. 850 (2002). Thus, a
reliable tip that makes only a conclusory allegation that a driver is intoxicated––
without evidence of specific driving behaviors that are indicia of drunk driving or
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some other offense––does not provide the type of specific, articulable facts
needed to supply reasonable suspicion. See Navarette, 134 S. Ct. at 1690–91;
Castro v. State, 227 S.W.3d 737, 742 (Tex. Crim. App. 2007); Taflinger, 414
S.W.3d at 888; Nacu v. State, 373 S.W.3d 691, 696 (Tex. App.––San Antonio
2012, no pet.). But see State v. Stolte, 991 S.W.2d 336, 339–43 (Tex. App.––
Fort Worth 1999, no pet.) (a pre-Navarette case). “[D]riving crazy” is too vague
and conclusory to describe driving behavior that would justify reasonable
suspicion. See Ford, 158 S.W.3d at 493 (“Mere opinions are ineffective
substitutes for specific, articulable facts in a reasonable-suspicion analysis.”).
The State contends that Judge Burgess’s conclusion that “driving crazy”
did not provide specific, articulable facts is incorrect because he evaluated that
driving fact apart from the context and circumstances under which it was made.
But even when considered with Officer Brown’s observation that a dark car hit
the curb, his general experience,3 his knowledge of the area, and the reasonable
inference that the car he saw was the same one that he saw hit the curb, it is not 3Although Officer Brown said that in his training and experience, a person’s “driving habits,” i.e., the way a person drives, can indicate intoxication and be a consideration in stopping that person and that he suspected the driver of DWI because he saw her hit a curb, he never explained why hitting a curb once could be considered, in his experience, evidence of intoxication. Cf. Navarette, 134 S. Ct. at 1690 (noting that “the accumulated experience of thousands of officers” links certain erratic behaviors, not hitting a curb, with drunk driving and stating that “not all traffic infractions imply intoxication. . . . [and] are so tenuously connected to drunk driving that a stop on those grounds alone would be constitutionally suspect”). Additionally, while Officer Brown testified that he had performed “several” DWI stops, he did not “do a lot of DWIs” because he did not enjoy them.
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enough to supply reasonable suspicion. See, e.g., Peters v. Texas Dep’t of Pub.
Safety, 404 S.W.3d 1, 5 (Tex. App.––Houston [1st Dist.] 2013, no pet.) (“Here,
the only relevant evidence in the record is that Peters was observed driving
slowly on the Sam Houston Tollway at 1:40 in the morning. Without more, we
cannot say that Deputy Kerr articulated facts, that when combined with rational
inferences from those facts, lead him to reasonably conclude that Peters was
intoxicated before he detained her.”); Davis v. State, 989 S.W.2d 859, 861, 865
(Tex. App.––Austin 1999, pet. ref’d); cf. Navarette, 134 S. Ct. at 1690 (explaining
that reasonable suspicion employs a common-sense approach under which
officers can appropriately recognize certain behaviors––such as weaving, driving
“all over” the road, crossing the center line, and almost causing a collision––as
“sound indicia” of drunk driving). “Driving crazy” could have meant that the
pedestrians saw the car hit the curb just as Officer Brown did. Although a
reasonable inference can be made that eyewitness pedestrians noticed
something unusual enough about the car that they thought an officer would be
justified in following it, that still is not sufficient to give Officer Brown reasonable
suspicion considering the totality of the circumstances in this case. See
Derichsweiler v. State, 348 S.W.3d 906, 917 (Tex. Crim. App. 2011) (holding that
to support a reasonable suspicion, the articulable facts must not only show “that
some activity out of the ordinary has occurred [and] some suggestion to connect
the detainee to the unusual activity” but also “some indication that the unusual
activity is related to crime”), cert. denied, 565 U.S. 840; see also Castro, 227
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S.W.3d at 742 (“We agree with Ford that opinions are not an effective substitute
for specific, articulable facts in a reasonable-suspicion analysis when the nature
of the offense requires an officer to make a subjective determination.”).
The specific, articulable facts known to Officer Brown are not as indicative
of drunk driving as those facts known to officers in the cases the State cites. See
Barnes v. Tex. Dep’t of Pub. Safety, No. 02-13-00020-CV, 2013 WL 3325101, at
*1, *3 (Tex. App.––Fort Worth June 27, 2013, no pet.) (mem. op.) (holding that
officer had reasonable suspicion to stop driver he witnessed driving seventeen
miles under the speed limit, fluctuating speed, and swerving within the center
lane and slightly into the left- and right-hand lanes multiple times); Martinez v.
State, No. 05-09-00147-CR, 2010 WL 188734, at *1, *3 (Tex. App.––Dallas Jan.
21, 2010, no pet.) (not designated for publication) (concluding that officer who
had performed over one hundred DWI stops in the past had reasonable
suspicion to detain Martinez when, while driving behind her at 2:49 a.m. on a flat,
well-lit, clearly marked road, he saw and heard her vehicle strike the curb hard
enough to push the car back into the lane in which she had been driving);
Medrano v. State, Nos. 01-07-00428-CR, 01-07-00429-CR, 2009 WL 276620, at
*1–2 (Tex. App.––Houston [1st Dist.] Feb. 5, 2009, no pet.) (mem. op., not
designated for publication) (upholding denial of motion to suppress when officer
saw Medrano driving with his blinker on for an extended time and weaving in and
out of the lane by about a “quarter of his vehicle” in an area and at a time when
the police knew an increased number of intoxicated drivers are on the road);
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Crager v. State, Nos. 10-06-00150-CR, 10-06-00151-CR, 2007 WL 1112948, at
*1–3 (Tex. App.––Waco Apr. 11, 2007, no pet.) (mem. op., not designated for
publication) (affirming denial of motion to suppress when at 3:00 a.m. officer who
had arrested or dealt with hundreds of intoxicated drivers and persons saw a car
“drive up and over the curb” while turning into an apartment complex and then
accelerate rapidly through two tight, ninety-degree turns); Stoerner v. State, No.
01-99-00186-CR, 2000 WL 5058, at *1–3 (Tex. App.––Houston [1st Dist.] Jan. 6,
2000, pet. ref’d) (not designated for publication) (affirming denial of motion to
suppress when DWI task force patrolman saw Stoerner’s tires strike the curb of
the turn lane twice as she was turning in front of him); State v. Sailo, 910 S.W.2d
184, 186–87, 189 (Tex. App.––Fort Worth 1995, pet. ref’d) (reversing grant of
motion to suppress when officers working traffic stop at 2:00 a.m. in high-DWI
area located near sexually-oriented businesses were flagged down by driver who
told officer he had seen a vehicle being driven “all over the road,” which had
almost run into a ditch, and vehicle of same description approached the location);
Fox v. State, 900 S.W.2d 345, 347 (Tex. App.––Fort Worth 1995) (holding that
trial court did not err by denying motion to suppress when officer followed driver
whose speed fluctuated between fifty-five and forty mph on I-30 at least four
times over four miles, after which driver began weaving within his lane, without
any indication of something on the road that would warrant such frequent
changes in speed or weaving), pet. dism’d improvidently granted, 930 S.W.2d
607 (Tex. Crim. App. 1996).
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Additionally, the difference in articulable driving facts that bear the indicia
of drunk driving also distinguishes other similar cases. See, e.g., Bilyeu v. State,
136 S.W.3d 691, 694, 698 (Tex. App.––Texarkana 2004, no pet.) (affirming
denial of motion to suppress when unidentified man approached officer in parking
lot and told him a person was asleep behind the wheel at a nearby green light
and pointed out to the officer the same car going past the parking lot at 10 mph in
a 35 mph zone); State v. Fudge, 42 S.W.3d 226, 228, 230–31 (Tex. App.––
Austin 2001, no pet.) (reversing grant of motion to suppress when cab driver
pulled up to officer in gas station, told him a white pickup truck was driving “all
over the road,” that the truck “couldn't stay on the road,” and that he “believed
[the driver] was drunk”); Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.––
Austin 2000, pet. ref’d) (affirming denial of motion to suppress when police
received an anonymous telephone tip that the driver of a Camaro with a
passenger parked at convenience store gas pumps, appeared to be highly
intoxicated, and fell down trying to get into the vehicle and the officer saw a
green Camaro with two occupants leaving the gas pumps when he arrived at
store two minutes later); State v. Adkins, 829 S.W.2d 900, 900–01 (Tex. App.––
Fort Worth 1992, pet. ref’d) (reversing grant of motion to suppress when
unidentified citizen approached officer in parking lot at 3 a.m., pointed out a
brown Ford Mustang on an adjacent street, said the driver appeared to be
extremely intoxicated, and the officer pulled over the driver after observing “a flat
tire that was badly damaged on the right rear wheel”). Accordingly, we hold that
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Judge Burgess correctly concluded that Officer Brown did not have reasonable
suspicion to detain Flemmons.
Because Judge Burgess did not err by concluding that Officer Brown did
not have reasonable suspicion to enable him to detain Flemmons for
investigation of DWI, we overrule the State’s second issue.

Outcome: Having overruled the State’s dispositive issues,4 we affirm the trial court’s
judgment.